Spouse and Children but No Will: Who Gets the Estate in New Brunswick

When a married person dies without a will, the law sets out who gets what. If there is a surviving spouse and children, the estate is shared between them under the Devolution of Estates Act. The split depends mainly on how many children there are.

This article walks through the rules and uses worked examples so you can see how the numbers fall out. Each family is different, so use this as a general guide and confirm the details with a lawyer.

This article covers the law of New Brunswick.

Two pieces: marital property and the residue

The rules divide the estate into two parts. First, the spouse takes the intestate's interest in marital property of the intestate and spouse. Second, the remaining estate, called the residue, is divided between the spouse and the children. The residue is, in plain words, what is left after debts, taxes and costs are paid. Funeral expenses, probate tax and fees, legal costs and similar items are paid from estate assets in a set order.

How the split works

Per stirpes means each child's share is divided by branch of the family, so if a child has died leaving children, those grandchildren share their parent's portion. The balance goes to the issue per stirpes.

Worked examples

Example one: a residue of $300,000, a spouse and one child. The spouse receives $150,000 plus the interest in marital property, and the child receives the other $150,000.

Example two: a residue of $300,000, a spouse and three children. The spouse receives $100,000 plus the interest in marital property, and each child receives $66,667.

These examples show only the residue. The marital property interest is calculated separately, and it depends on what the couple owned and how. It is often where a lawyer's help is most useful.

Special cases that change the numbers

• A child who died before the parent: if the child left issue alive at the intestate's death, the spouse's share is computed as if that child were living.
• The word child means offspring of the first generation and excludes grandchildren, though grandchildren take as issue per stirpes.
• A child born after the death but conceived before it still inherits.
• An advancement made to a child during the parent's life is counted against that child's share.
• Half-blood relatives inherit equally with the whole blood.
• Common-law partners are not covered: an unmarried partner has no intestate share.

Other claims and next steps

Intestacy is not the only path. A surviving married spouse may apply to the Court to have marital property divided in equal shares as against the estate, within four months of death, with an extension in limited cases. A spouse or child can also apply under the Provision for Dependants Act for maintenance and support if their resources are insufficient, generally within four months of death.

Going to the Probate Court is not strictly mandatory in New Brunswick, but it is recommended, especially when the estate includes real property. Where it is used, Letters of Administration appoint an administrator to collect assets, pay debts and taxes, and distribute to those legally entitled. The Court may grant administration to the spouse, next-of-kin or next-of-kin's spouse as it considers proper. The application goes to the probate office for the district where the deceased lived or held property. Before letters issue, a sworn statement of the estate's total value must be filed.

• Confirm there is truly no will, including a handwritten one.
• List the family members: spouse, children, and any child who died leaving children.
• List assets and debts, and how property was held.
• Note the date of death for the four-month deadlines.
• Decide who will apply to administer the estate.
• Speak with a lawyer before distributing anything.

Frequently asked questions